Tuesday, November 30, 2010

Black money case - SC refuses to take ED’s report on record

The Supreme Court today took strong exception to the Enforcement Directorate filing an “unsigned” status report about its investigations into the issue of black money stashed in foreign banks.

The apex court returned the unsigned status report which was placed before it in the sealed cover to the investigating agency making it clear that “it will not accept the report which has not been signed by any official.”

“We want to look into the status report but we will not accept it as it is not signed. You have to place before us a signed status report,” a Bench comprising Justices B Sudershan Reddy and S S Nijjar said while asking the ED to apprise it of progress in its investigation by December 10.

During the hearing, the Centre claimed privilege over some documents and said it could not make them public as it would jeopardise the investigation carried out so far.

“I know that the matter is of public interest. We have done the investigation. I don’t want to bring it in the public domain. I don’t want the investigation to get jeopardised,” Additional Solicitor General Parag Tripathi said.

However, the Bench said the petitioner was not making submission to jeopardise the investigation but wanted to know what has happened to the probe since September last year.

“In September 2009, a notice was issued in the matter. We want to know what has happened in the matter,” the Bench said.

Senior advocate Anil Divan, appearing for noted jurist Ram Jethamalani and others who have filed a PIL on black money, submitted the Centre should make public the status report on the probe done by its agencies.

Mr. Tripathi, who disfavoured making public the status report on the investigation, gave example of the 9/11 Mumbai terror attack and said live footage of the incident was used by the terrorists to help themselves.

“I don’t like this thing to happen in this matter (investigation into the issue of black money). If the documents are made public, it will help the offenders. I don’t want to jeopardise the investigation,” he said.

However, his stand was opposed by Mr. Divan who said that looking at it with that of terrorist angle was different from the criminality involved in the present matter.

He was objecting to the stand of the Department of Revenue which was not giving the documents relating to the showcause notice issued on December 29, 2008, to Pune-based businessman Hasan Ali Khan against whom the Enforcement Directorate had lodged a complaint for violating Foreign Exchange Management Act (FEMA).

Mr. Divan said it is the admitted position of the ED that no action has been taken for money laundering under FEMA against Khan who was in contact with Adnan Khasogi, an arms dealer from Saudi Arabia.

“Khan is criminally involved in money laundering but no action has been taken. You just say I (ED) have applied to Swiss government (to know about the money stashed by him),” Mr. Divan said adding Khan obviously is a front man for somebody else.

The senior advocate said Khan is more than a person who is involved in horse racing.

Besides Mr. Jethmalani, five others, including former Punjab DGP K P S Gill and former Secretary General of Lok Sabha Subhash Kashyap who are petitioners, have alleged the government was not taking action to bring back black money stashed in foreign banks.

The petition has also been filed by an NGO, People’s Political Front and former top cop Julio F Riberio and others on the issue.

Advocate Meenakshi Arora, appearing for the NGO, submitted that when German government offered a chance to the account holders in Liechtenstein Bank from different countries to disclose their assets within 30 days in 2009 for availing amnesty, people from many European nations availed the benefit and made voluntary disclosure of their bank account.

However, the benefit of that offer was not availed in India.

She said had the authorities in India acted, the result would have been different.

“Now, it gave opportunity to those in India to transfer the money from Liechtenstein Bank to some other banks in other country and therefore, the money trail has been lost,” she submitted.

During the earlier hearing, Mr. Jethmalani and others had sought permission of the apex court to cross-examine a senior revenue officer who filed an affidavit claiming immunity from disclosing some documents relating to the issue of black money in foreign banks.

The application said their plea for disclosing 21 documents in connection with the steps taken by the government to bring back the black money was not disclosed with an intention to hide the truth and protect some influential persons.

The affidavit filed on July 22 by the Director, Department of Revenue, Ministry of Finance, had said it cannot disclose 16 of the 21 documents sought by the petitioner.

Mr. Jethmalani had in the application said there was no reason cited for claiming immunity from disclosing the documents.

WikiLeaks website blocked within China

Links to the WikiLeaks website have been blocked within China amid potentially embarrassing claims made in leaked U.S. diplomatic cables posted to it.

Attempts to access the wikileaks.org and cablegate.wikileaks.org sites were met with a notice saying the connection had been reset. That’s the standard response when a website is being blocked by Chinese authorities who exert rigid controls over Internet content.

While government content blocks are not at all unusual, WikiLeaks may have been singled out because of some of the assertions made in the leaked cables. Those include that Chinese leaders are prepared to accept South Korea’s eventual rule over the entire Korean peninsula and China’s Politburo directed a cyber intrusion into Google.

After SC stinger, CVC Thomas may quit - Sources

Central Vigilance Commissioner P J Thomas may quit the post in the wake of stinging observations from the Supreme Court on his capacity to supervise the CBI probe into the 2G spectrum scam.

Appointed barely less than three months ago, Thomas, whose name still figures in the chargesheet relating to the import of palmolein when he was serving in the Kerala government, is believed to have conveyed his decision to government, sources said.
The decision was taken mutually, the sources said adding it was now now up to Thomas to put in his papers to the President, who is the appointing authority.
60-year-old Thomas, who was Telecom Secretary till recently, was appointed to the CVC's post by a three-member panel headed by Prime Minister but not before the Leader of the Opposition in the Lok Sabha Sushma Swaraj, gave a dissenting note.

2G: SC questions CVC Thomas' ability to oversee probe

The Supreme Court on Tuesday virtually questioned the tenability of Chief Vigilance Commissioner P J Thomas supervising the Central Bureau of Investigation's investigations into the 2G spectrum scandal as he himself was Telecom Secretary at the relevant point of time.

A Bench of justices G S Singhvi and Ashok Kumar Ganguly pointed out that since the CBI functions under the over all supervision of the CVC it would be difficult for Thomas to objectively monitor the investigations.
"CBI is functioning under the CVC, at that time he (Thomas) was functioning as Telecom Secretary. It would be difficult for him to objectively monitor."
"He had justified the action which are being subject to scrutiny by this court and CBI. It would be difficult for him to objectively supervise." the bench observed.
The Supreme Court had last week raised questions about Thomas' controversial appointment as CVC despite his name figuring as an 'accused' in a criminal case. His name figures in the chargesheet filed in a palmoleine export case.

Monday, November 29, 2010

BSNL can impose max penalty on RCom for masked calls - SC

New Delhi: The Supreme Court on Monday upheld the imposition of maximum penalty by BSNL on Anil Ambani Group firm RCom for wrongly routing international calls through the state-run telco’s network as local connections by tampering with calling line identification (CLI) numbers.
Athree-judge bench headed by the Chief Justice S H Kapadia said that as per BSNL’s interconnect agreement with RCom, the state-run firm had the right to levy a penalty on all calls routed by ADAG firm through its network, including local calls, based on the highest call rate slab. The Supreme Court also held that by masking international call as local, RCom had tried to destroy the “principles of level-playing field” and BSNL has the right to recover its losses.

The apex court also set aside the earlier order of telecom tribunal TDSAT in favour of RCom, saying such violations come under “strict liability”, where the PSU can impose penalty on each and every call from their point of interconnection (PoI). “We set aside the impugned judgment and remit the matter to TDSAT to decide the matter de novo in accordance with the law laid down,” said the bench, which also consisted of Justices K S Radhakrishnan and Swatanter Kumar.
TDSAT had on May 24, 2010, set aside the bills raised by BSNL and said that Clause 6.4.6 of the interconnect agreement between RCom and PSU was penal in nature; therefore, the BSNL cannot impose a penalty on all calls routed by RCom through its PoI. The TDSAT had further said the amount of penalty was not commensurate to the actual damage suffered by BSNL and it would have to draw a distinction between unauthorised calls and calls with a missing or modified CLI number.
The apex court further said telcos are “obliged to maintain the integrity of its PoI” under the interconnect agreement. “It is important to note that each service provider, including BSNL, is a market player. Each UASL is entitled to a levelplaying field. The nature of the call, be it local or national or international, as indicated by corresponding CLI, is the basis for the levy of IUC.”
“If by wrong routing of calls or by masking the cost of providing services is reduced, the concerned operator gets an undue advantage not only in the Indian market over other competing operators, but also in the international market.”
“Hence, an international call coming from the masked number alone cannot be taken into account,” said the apex court, while allowing the plea of BSNL. The court further said, “All this leads to reduced cost for the defaulting UASL, which provides not only increase in its profit, but also gives it an advantage in international market vis-a-vis other competitors including BSNL.”
“One must keep in mind the concept of pricing of these contracts and the level-playing field provided to operators because it is on costing and pricing that the loss to BSNL is measured and, therefore, all calls during the relevant period have to be seen,” the court said.

Case registered against Arundhati, Geelani

Complaint was filed by Sushil Pandit in the court under Section 156 (3) of the Criminal Procedure Code
Following a court order, the Delhi Police on Monday registered a case of sedition against writer Arundhati Roy, hardline Hurriyat leader Syed Ali Shah Geelani, revolutionary poet Varavara Rao and others on charges of giving “anti-India” speeches at a convention on Kashmir, “Azadi: The Only Way”, held here on Oct. 21.

The case has been registered at Tilak Marg police station under Sections 124 A (sedition), 153 A (promoting enmity between different groups and doing acts prejudicial to maintenance of harmony), 153 B (imputations, assertions, prejudicial to national integration), 504 (insult intended to provoke breach of peace) and 505 (statements conducing to public mischief) of the IPC and Section 13 of the Unlawful Activities (Prevention) Act.

Joint Commissioner of Police (New Delhi Range) Dharmendra Kumar said the complaint filed by Sushil Pandit in the court under Section 156 (3) of the Criminal Procedure Code has been converted into the First Information Report FIR after taking legal opinion on the matter. With the registration of the case, the police have initiated investigations. They have already obtained footage of the speeches made at the convention. “We will closely examine the speeches and file a report in the court by January 6, 2011 (the next date of hearing),” said Mr. Kumar.

The others named in the complaint include Delhi University professor S. A. R. Geelani who was acquitted in the Parliament attack case, Kashmir University law professor Sheikh Shaukat Hussain, Shuddhabrata Sengupta and Sujato Bhadra.

A Delhi court had, last Saturday, ordered the police to register the FIR against Ms. Roy, the Hurriyat leader and the others for allegedly making anti-India statements at the convention. Directing the police to register the case under relevant provisions, Metropolitan Magistrate Navita Kumari Bagha had noted that there was prime facie cogent evidence against the accused.

U.S. says leaks are a crime, threatens prosecution

Striking back, the Obama administration branded the leak of more than a quarter-million sensitive files an attack on the United States on Monday and raised the prospect of criminal prosecution against the online site WikiLeaks. The Pentagon detailed new security safeguards, including restraints on small computer flash drives, to make it harder for any one person to copy and reveal so many secrets.

The young Army Pfc. suspected of stealing the diplomatic memos, many of them classified, and feeding them to WikiLeaks may have defeated Pentagon security systems using little more than a Lady Gaga CD and a portable computer memory stick.

The soldier, Bradley Manning has not been charged in the latest release of internal U.S. government documents. But officials said he is the prime suspect partly because of his own description of how he pulled off a staggering heist of classified and restricted material.

“No one suspected a thing,” Manning told a confidant afterward, according to a log of his computer chat published by Wired.com. “I didn’t even have to hide anything.”

Secretary of State Hillary Rodham Clinton asserted Monday that WikiLeaks acted illegally in posting the material. She said the administration was taking “aggressive steps to hold responsible those who stole this information.”

Attorney General Eric Holder said the government was mounting a criminal investigation, and the Pentagon was tightening access to information, including restricting the use of computer storage devices such as CDs and flash drives.

“This is not saber-rattling,” Mr. Holder said. Anyone found to have broken American law “will be held responsible.”

Holder said the latest disclosure, involving classified and sensitive State Department documents, jeopardized the security of the nation, its diplomats, intelligence assets and relationships with foreign governments.

A weary-looking Ms. Clinton agreed.

“I want you to know that we are taking aggressive steps to hold responsible those who stole this information,” Clinton said. She spoke in between calls to foreign capitals to make amends for scathing and gossipy memos never meant for foreign eyes.

Manning is charged in military court with taking other classified material later published by the online clearinghouse WikiLeaks. It is not clear whether others such as WikiLeaks executives might be charged separately in civilian courts.

Clinton said the State Department was adding security protections to prevent another breach. The Pentagon, embarrassed by the apparent ease with which secret documents were passed to WikiLeaks, had detailed some of its new precautions Sunday.

Col. Dave Lapan, a Pentagon spokesman, said it was possible that many people could be held accountable if they were found to have ignored security protocols or somehow enabled the download without authorization.

A senior Defense Department official, speaking on condition of anonymity because the criminal case against Manning is pending, said he was unaware of any firings or other discipline over the security conditions at Manning’s post in Iraq.

In his Internet chat, Manning described the conditions as lax to the point that he could bring a homemade music CD to work with him, erase the music and replace it with secrets. He told the computer hacker who would turn him in that he lip—synched along with pop singer Lady Gaga’s hit “Telephone” while making off with “possibly the largest data spillage in American history.”

Wired.com published a partial log of Manning’s discussions with hacker R. Adrian Lamo in June.

“Weak servers, weak logging, weak physical security, weak counterintelligence, inattentive signal analysis,” Manning wrote. “A perfect storm.”

His motive, according to the chat logs- “I want people to see the truth ... because without information, you cannot make informed decisions as a public.”

By his own admission, Manning was apparently able to pull material from outside the Pentagon, including documents he had little obvious reason to see. He was arrested shortly after those chats last spring. He was moved in July to the Quantico Marine Corps Base in Virginia to await trial on the earlier charges and could face up to 52 years in a military prison if convicted.

There are no new charges, and none are likely at least until after a panel evaluates Manning’s mental fitness early next year, said Lt. Col. Rob Manning, spokesman for the Military District of Washington. He is no relation to Bradley Manning.

Manning’s civilian lawyer, David E. Combs, declined comment.

Lapan, the Pentagon spokesman, said the WikiLeaks experience has encouraged discussion within the military about how better to strike a balance between sharing information with those who need it and protecting it from disclosure.

So far, he said, Pentagon officials are not reviewing who has access to data but focusing instead on installing technical safeguards.

Since summer, when WikiLeaks first published stolen war logs from the conflicts in Iraq and Afghanistan, the Defense Department has made it harder for one person acting alone to download material from a classified network and place it on an unclassified one.

Such transfers generally take two people now, what Pentagon officials call a “two—man carry.” Users also leave clearer electronic footprints by entering a computer “kiosk,” or central hub, en route to downloading the classified material.

Pentagon spokesman Bryan Whitman said the WikiLeaks case revealed vulnerable seams in the information—sharing systems used by multiple government agencies. Some of those joint systems were designed to answer another problem- the failure of government agencies to share what they knew before the Sept. 11, 2001, attacks.

“These efforts to give diplomatic, military, law enforcement and intelligence specialists quicker and easier access to greater amounts of data have had unintended consequences,” Whitman said.

Agencies across the U.S. government have installed safeguards around the use of flash drives and computer network operations, said Navy Rear Adm. Michael Brown, the Department of Homeland Security’s director for cybersecurity coordination.

Like the Pentagon, Homeland Security has laid out policies to ensure that employees are using the networks correctly, that the classified and unclassified networks are properly identified, and that there are detailed procedures for moving information from one network to another.

Dale Meyerrose, former chief information officer for the U.S. intelligence community, said Monday that it will never be possible to completely stop such breaches.

"This is a personnel security issue, more than it is a technical issue,” said Meyerrose, now a vice president at Harris Corp. “How can you prevent a pilot from flying the airplane into the ground? You can’t. Anybody you give access to can become a disgruntled employee or an ideologue that goes bad.”

One official in contact with U.S. military and diplomatic staff in Iraq said they already were seeing the effect of a tighter collar on information.

The State Department and other agencies are restricting access among the Army and nonmilitary agencies, the official said. The official spoke on condition of anonymity to discuss the sharing of classified information.

Former CIA director Michael Hayden warned the latest leak will affect what other governments are willing to share with the U.S. as well as change the way U.S. officials share information among themselves.

“You’re going to put a lot less in cables now,” he said.


S.B. Sinha & Markandey Katju

[Arising out of SLP (Civil) No. 16437 of 2006] S.B. SINHA, J :

Leave granted.

One Reshma Devi, aged about 40 years, was going to take bath at Rajghat Ganga with her son, Respondent No.3 herein. Driver of an Eicher Tractor bearing Registration No. U.P.30/8423 was driving the said vehicle rashly and negligently hit her as a result whereof, she fell down. She died on 01.05.1995. A claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act) was filed by Respondent No. 2 herein. The said tractor was insured with Respondent No.1, the Insurance Company.

The Motor Accidents Claims Tribunal by an award dated 14.10.2004 determined the amount of compensation payable to the said respondent at Rs.1,06,000/-. Out of the said amount, a sum of Rs.75,000/- was to be paid to Respondent No. 2 (husband of the deceased) and Rs.31,000/- to her son, Respondent No.3 herein.

Respondent No.1, however, preferred an appeal thereagainst, which was dismissed by an order dated 24.01.2005, stating :

"We, therefore, while dismissing the aforesaid appeal give liberty to the appellant to initiate appropriate proceedings against the owner and driver of the vehicle for realization of the amount, which is to be paid by the Insurance Company in terms of the award to the third party-claimant subject to establishing its case before the Tribunal.

We further provide that the amount, which is in deposit before this Court as well as before the Tribunal shall be allowed to be withdrawn by the claimants/respondents.

The balance amount shall be deposited by the Insurance Company within two months from today before the Tribunal. On deposit so being made, the claimants/respondents shall be allowed to withdraw the same also without furnishing any security.

It will, however, be open to the Insurance Company to recover the amount in question from the insured. For the purpose of recovering the same from the insured owner of the vehicle, the insurer shall not be required to file a suit. It may initiate a proceedings before the Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. It is further directed that before releasing the amount, the insured owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. This observation is in consonance with the view taken by the Apex Court in case of Oriental SC page 1630."

Respondent No.1, however, filed an application for review of the said order, inter alia, on the premise that as on the date of the accident, admittedly, the driver was not holding any valid licence in terms of the judgment of this Court in National Insurance Company Limited v. Swaran Singh and Others [(2004) 3 SCC 297]. Relying on or on the basis of the decision of this Court in Oriental Insurance Co. Ltd. v. Nanjappan and Others [AIR 2004 SC 1630], the said application for review was dismissed.

The learned counsel appearing on behalf of the appellants would submit that although the licence held by the driver of the tractor expired on 27.08.1994, the same later on having been renewed, the Insurance Company was liable to reimburse the amount of compensation payable by the appellants to the claimant-respondents.

The learned counsel appearing on behalf of the respondents, however, supported the impugned judgment.

Section 15(1) of the Act and the first proviso appended thereto reads as under :

"15. Renewal of driving licences. (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the dale of its expiry:

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the dale of its expiry, the driving licence shall be renewed with effect from the date of its renewal:"

From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder.

The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.04.1995. As on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident.

In Swaran Singh (supra), whereupon the learned counsel appearing on behalf of the appellants relied upon, it is stated :

"45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.

46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry."

This aspect of the matter is now covered by a decision of this Court in National Insurance Company v. Kusum Rai & Others [(2006) 4 SCC 250], wherein this Court referring to Swaran Singh (supra), opined :

"14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-`-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle.

The question as regards the liability of the owner vis-`-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating: (SCC pp. 336-37, para 89)

89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are goods carriage, heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi-cab, medium goods vehicle, medium passenger motor vehicle, motor-cab, motorcycle, omnibus, private service vehicle, semi-trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for motorcycle without gear, [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab, motor-cab or omnibus for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."

[See Nanjappan (supra)] In this view of the matter, there is no merit in this appeal, which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.






APPFROM: RP No 844 of 2000 (High Court, New Delhi)

JUDGMENT : N Santosh Hegde J

(delivering judgment of the court): Leave granted.

[2]Heard learned counsel for the parties.

[3]The appellant in this appeal is challenging the decision of the National Consumer Disputes Redressal Commission, New Delhi (‘the National Commission’) whereby the National Commission dismissed his revision petition filed against the judgment and order of the State Consumer Disputes Redressal Commission, Bihar (‘the State Commission’) which in turn had allowed the appeal filed by the respondent-insurance company before it. While allowing the said appeal, the State Commission set aside an order of the District Consumer Redressal Forum, Jehanabad (‘the District Forum’) whereby the District Forum had allowed a claim of the appellant and directed the respondent-insurance company to pay a sum of Rs 80,000 as damages suffered by the appellant due to the loss of his motor vehicle and further directed the payment of Rs 5,000 as compensation and Rs 1,000 as cost of the litigation.

[4]Brief facts giving rise to this appeal are as follows:

[5]The appellant was the owner of the Maruti Van bearing registration No BR-2/5667 which was insured with the respondent-insurance company. It is the case of the appellant that on 25 April 1996 at about 9.30 pm while returning from Gaya to Jehanabad the vehicle in question caught fire due to mechanical reasons and due to the said fire the said vehicle was burnt beyond repair. An intimation of this accidental fire was made to the respondent-insurance company on 14 May 1996. With the said intimation, the appellant also lodged a claim with the respondent for payment of damages. The insurance company as per its letter dated 10 of December 1996 repudiated the said claim of the appellant solely on the ground that the driver did not have a valid licence at the time of the incident in question. The District Forum after hearing the parties came to the conclusion that the accidental fire due to which the appellant’s vehicle got damages was not caused due to any act of the appellant’s driver but was due to mechanical fault, therefore, it held that contention of the insurance company that the appellant’s driver did not hold a valid licence could not be a ground to repudiate the claim, accordingly, ordered the payment of damage, compensation and cost as stated herein above.

[6]In an appeal filed by the insurance company, the State Commission reversed the said judgment holding that the driver of the vehicle did not have a valid driving licence and his original licence was a fake which was inadvertently renewed by the district transport officer, therefore, following the judgment of the National Commission in 1996 (1) CPR 81 (NC) (Raj Kumar & Anor v New India Assurance Company & Ors) held that the insurance company was justified in repudiating the claim of the appellant.

[7]A revision petition filed by the appellant against the said judgment of the National Commission came to be dismissed by the National Commission by the impugned order wherein the National Commission placed reliance on a judgment of this court in the case of New India Assurance Company Ltd, Shimla v Kamla & Ors (2001) 4 SCC 342.

[8]As stated, it is against the above judgment of the National Commission the appellant is before us.

[9]Learned counsel for the appellant contended that the National Commission and the State Commission erred in coming to the conclusion that holding of valid driving licence was a condition precedent to claim any damage from the insurance company even when the accident in question has occurred due to no fault/or act of the driver. He submitted that the judgment of this court in the case of New India Assurance Company has no application to the facts of this case.

[10]We have heard learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. Question then is: can the insurance company repudiate a claim made by the owner of the vehicle which is duly insured with the company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the insurance company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section149(2)(a)(ii) of the Motor Vehicles Act empowers the insurance company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the insurance company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed ie damages incurred due to reasons other than the act of the driver.

[11]We notice that in the impugned order National Commission has placed reliance on the judgment of this court in the case of New India Assurance Company which, in our opinion, has no bearing on this aspect of the case in hand. This court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this court in the case of New India Assurance Company does not go to the extent of laying down a law which empowers the insurance company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion insurance company could not have repudiated the claim of the appellant.

[12]For the reasons stated above, this appeal succeeds, the impugned judgments of the National Commission and the State Commission are set aside and that of the District Forum is restored. The appeal is allowed with costs.




Malwa Cotton & Spinning Mills Ltd. .. Appellant
Virsa Singh Sidhu and Ors. ..Respondents WITH

Criminal Appeal No. 1266 of 2008 @ SLP (Crl.) No.408 of 2006 Criminal Appeal No. 1267 of 2008 @ SLP (Crl.) No.409 of 2006 Criminal Appeal No. 1268 of 2008 @ SLP (Crl.) No.410 of 2006 Criminal Appeal No. 1269 of 2008 @ SLP (Crl.) No.411 of 2006 Criminal Appeal No. 1270 of 2008 @ SLP (Crl.) No.412 of 2006 Criminal Appeal No. 1271 of 2008 @ SLP (Crl.) No.413 of 2006 Criminal Appeal No. 1272 of 2008 @ SLP (Crl.) No.414 of 2006


SLP (Crl.) 6049/2005 1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court accepting the prayer of respondent No.1 for quashing the proceedings pending before the Judicial Magistrate, First Class, Ludhiana. The proceedings related to the complaint filed by the appellant alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short the `Act '). In all, 8 petitions were filed which were disposed of by the common judgment.

3. The present appeals relate to Criminal Miscellaneous No.52153 of 2002 and connected cases. The High Court quashed the proceedings primarily on the ground that respondent No.1-Virsa Singh Sidhu in the first case had resigned from the Directorship before the cheques were issued. The other petitions were allowed on the ground that there were some general allegations that all Directors were responsible.
4. Learned counsel for the appellant submitted that the High Court's judgment is clearly unsustainable. So far as respondent No.1 is concerned he claims to have resigned on 2.4.1999 whereas cheques were issued on various dates vis in December 2000 and February 2001. It is pointed out that the Form No.32 which was required to be filed with the Registrar of Companies was filed on 5.7.2001 i.e. much after the cheques were issued. Whether in fact the respondent No.1's claim to have resigned was factually correct would have been established in trial and the High Court could not have passed the impugned judgment while dealing with the application under Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code')? It is further pointed out that the High Court was not justified in holding that there was no specific allegation against other accused persons. With reference to the complaint it was pointed out that specific allegation is to the effect that the accused persons were in charge of day to day management work. In any event, this is not a question 3 which could have been gone into in a proceeding under Section 482 of Code. It is a matter of trial.
5. Learned counsel for respondent No.1 on the other hand submitted that the High Court was justified in its view that respondent No.1 had intimated the company about his desire to resign. If the company delayed in submitting the requisite form before the Registrar of Companies, he cannot be made to suffer.
6. As rightly contended by learned counsel for the appellant factual disputes are involved. What was the effect of delayed presentation before the Registrar of Companies is essentially a matter of trial. Whether respondent No.1 had intimated the company and whether there was any resolution accepting his resolution are matters in respect of which evidence has to be led. Therefore, the High Court was not justified in its view.
7. So far as allegations against the Directors are concerned about their position in the company the complaint specifically 4 contained the averments regarding the position of the accused Directors in the company.
8. At this juncture, it would be relevant to take note of certain observations made by this Court in various cases.
9. In S.V. Muzumdar v. Gujarat State Fertilizer Co. Ltd.
and Anr. (2005 (4) SCC 173), it was inter-alia observed as follows:
"3. The facts as projected by the respondents in the complaint were to the effect that the respondent no.1 (hereinafter referred to as the `complainant') supplied goods on credit to M/s Garware Nylons Ltd. (hereinafter referred to as the `Company') (accused no.14). Cheques issued by the company were not honoured by the drawee bank on the ground of insufficient funds. Payments were not made even after legal notices. There were 14 accused persons including the company named in the complaint. Some of the accused persons were Directors and while others were employees.
Learned Chief Judicial Magistrate, Vadodara after recording statement of marketing manager who had filed the complaint for himself and on behalf of the complainant- company, issued summons to all the accused persons for facing trial for alleged commission 5 of offences punishable under Section 138 of the Act read with Sections 420 and 114 of the Indian Penal Code, 1860 (in short the `IPC').
The order issuing summons was challenged by filing criminal revision applications which were dismissed by order dated 21.3.1996. Said common judgment and order was challenged before the High Court by filing special criminal applications and these applications were permitted to be withdrawn to enable the appellants to move applications before the learned Chief Judicial Magistrate as stated by the petitioners. Application was filed with prayer to drop proceedings. That application was rejected by order dated 21.8.1997. Same was questioned before the High Court. The challenge before the High Court was primarily on the ground that there was no material to show that the accused persons at the time of offence as allegedly committed were in charge and/or responsible to the company for the conduct of the business as required under Section 141(1) of the Act . It was also submitted that the deeming provision under sub- section (2) of Section 141 which covers persons with whose consent or connivance or any attributable negligence for commission of the offence by the company was also not applicable. The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold.
xx xx xx
8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not 6 constitute a foundation for action in terms of Section 141 of the Act . These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub- section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.
9. Under Scheme of the Act , if the person committing an offence under Section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence.
A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub- section (1). The burden in this regard has to be discharged by the accused.
10. The three categories of persons covered by Section 141 are as follows:
(1) The company who committed the offence.
(2) Everyone who was in charge of and was responsible for the business of the company.
7 (3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence.
11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub- section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him."
10. In N. Rangachari v. Bharat Sanchar Nigam Ltd. (2007 (5) SCC 108), it was observed as follows:
"19. Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company. If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. It appears to us that an 8 allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In Gower and Davies' Principles of Modern Company Law (17th Edn.), the theory behind the idea of identification is traced as follows:
"It is possible to find in the cases varying formulations of the underlying principle, and the most recent definitions suggest that the courts are prepared today to give the rule of attribution based on identification a somewhat broader scope.
In the original formulation in Lennard's Carrying Company case (1915 AC 705 (HL) Lord Haldane based identification on a person `who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation'. Recently, however, such an approach has been castigated by the Privy Council through Lord Hoffmann in Meridian Global case (1995 (2) AC 500 (PC) as a misleading `general metaphysic of companies'. The true question in each case was who as a matter of construction of the statute in question, or presumably other rule of law, is to be regarded as the controller of the company for the purpose of the identification rule."
11. Therefore, the High Court was not justified in quashing the proceedings so far as respondent No.1 in the first case is concerned. The appeal is allowed.
12. In view of the order passed in Criminal Appeal arising out of SLP (Crl.) No.6049/2005, where details have been indicated, other appeals are deserved to be allowed. The impugned order of the High Court in each case is set aside.
(Dr. ARIJIT PASAYAT) ............................................J.


Tarun Chatterjee & Dalveer Bhandari


[Arising out of SLP (Crl.) Nos.2351-2352 of 2005]

Southern Steel Ltd. & Others .. Appellants
Jindal Vijayanagar Steel Ltd. ..Respondent

Dalveer Bhandari, J.

1. Leave granted in both these Special Leave Petitions.
2. These appeals are directed against the judgment dated 3.1.2005 of the High Court of Karnataka at Bangalore in Criminal Petition Nos. 948 and 949 of 2003.

3. The brief facts of these appeals are recapitulated as under:
On the request of the appellants (Southern Steel Ltd.), the respondent company (Jindal Vijayanagar Steel Ltd.) had supplied HR Coils to the appellants. The terms of payment under the purchase order dated 25.4.1998 granted 45 days interest free credit to the appellants for the goods sold and delivered by the 1st respondent. The appellants had issued the cheques in question in favour of the respondent company.
The said cheques were dishonoured on presentation. In response to the legal notice sent by the respondent company, the appellants, through two substantially identical replies dated 6.4.2000, for the first time, contended that the appellants had been declared a sick company on 8.4.1997 under the provisions of the Sick Industrial Companies (Special Provisions) Act , 1985 (for short "SICA") and, therefore, no legal proceedings of recovery of the outstanding amount could be initiated against the appellant company.
4. It may be pertinent to mention that the purchases were made by the appellants from the respondent company after 3 the appellant company was declared sick under the provisions of SICA. The appellants could not dispute the fact that the purchases were made after the appellant company was declared sick under the SICA. The purchases were made holding out clear representation that the goods will be paid for. Ultimately, on non-payment of the outstanding amount, the respondent company initiated criminal proceedings against the appellant company by filing a criminal complaint under section 138 of the Negotiable Instruments Act, 1881 .
5. The appellant company, aggrieved by the said proceedings, filed Criminal Petitions Nos.3225-3226 of 2000 under section 482 Cr.P.C. for quashing the proceedings under section 138 of the Negotiable Instruments Act . The High Court dismissed both these petitions holding that it was premature to analyze the entire documentary evidence as put forth by both sides to give a finding one way or the other.
Thereafter, the appellants, subsequent to the directions given by the High Court, approached the trial court and produced the documents including the order passed by the Board for Industrial Financial Reconstruction (for short "BIFR") under 4 section 22-A of SICA. They sought discharge of the accused under section 258 of the Code of Criminal Procedure.
However, the trial court dismissed those applications.
Thereafter, the appellants again approached the High Court by filing two criminal petitions for quashing the criminal proceedings.
6. The appellants placed reliance on the two judgments of this court in the matter of BSI Ltd. & Another v. Gift Holdings Pvt. Ltd. & Another (2000) 2 SCC 737 and Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd. &
Others (2000) 2 SCC 745. In the impugned judgment, the High Court has dealt with these two judgments along with other judgments. The High Court also accepted the legal position that the court has the power to discharge the accused or quash the proceedings at mid-stage, but having regard to the peculiar facts and circumstances of the case, according to the impugned judgment of the High Court, it would not be appropriate to interfere. Consequently, both these petitions filed by the appellants before the High Court were dismissed.
7. The appellants, aggrieved by the impugned order of the High Court, preferred these appeals and submitted that the appellants' case is squarely covered by the aforementioned cases of Kusum Ingots and BSI Ltd.
8. We have carefully analyzed the principles of law enunciated in both these cases, along with other cases, cited by Mr. M. L. Verma, learned senior Advocate appearing for the appellant company. There is no quarrel with the legal proposition which has been laid down in both the aforementioned cases, but we are in complete agreement with the view taken by the High Court in the impugned judgment that in view of the peculiar facts and circumstances of these cases, the aforesaid judgments have no application to these cases.
9. According to the High Court, admittedly the purchase orders in question were entered into and the purchases were made by the appellants with full knowledge of the proceedings that the company was declared sick under the SICA, the appellants clearly all through gave the impression to the 6 respondent company that the outstanding amount towards the purchase of the goods would be shortly cleared. The fact that the purchases were made with the clear promise to repay could not be disputed by the appellants. The Directors had in fact issued the cheques for discharging their liability with the full knowledge, would not only clearly show that there was an undisputed debt, but would also show that, right from the inception, the appellants in fact had no intention of paying the amount for the purchases made by them. The intention of the appellants can be gathered by their subsequent acts, conduct and behaviour of taking a shelter under the provisions of SICA. Hence, the appellants are not entitled to any indulgence of this court under its extraordinary jurisdiction under Article 136 of the Constitution. The appellants had lost their total credibility because of their conduct. When the appellant company was declared sick, then without disclosing this fact the appellants ought not to have made huge purchases from the respondent company. Ultimately, the appellant company did not pay for the purchases. This clearly indicates that the appellants had no intention of making payment of the purchases made by it.
10. The High Court, in the impugned order, has directed the trial court to dispose of the cases of the appellants as early as possible, but not later than six months from the date of its order. The appellants by approaching this Court have caused avoidable delay in disposal of these cases before the trial court.
11. In the facts and circumstances of the case, we deem it appropriate to request the trial court now to conclude the trial of these cases as expeditiously as possible and, in any event, within six months from the date of this judgment. We direct the parties to appear before the trial Court on 1st July, 2008.
12. The trial court is directed to decide these cases without being influenced by any observations passed by this court or the High Court in the impugned judgment. These appeals, being devoid of any merit, are accordingly dismissed.
(Tarun Chatterjee) 8 ..............................J.
(Dalveer Bhandari) New Delhi;

PRAMOD KUMAR SAXENA v. UNION OF INDIA & ORS. [2008] INSC 1601 (19 September 2008)



1. Rule. We have heard the learned counsel appearing in the case. On the facts and in circumstances of the case, the writ petition has been taken up for final hearing.
2. The present petition is filed by the petitioner under Article 32 of the Constitution. The prayer clause reads thus;
2 "It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:- (a) Issue appropriate writ in the nature of Mandamus or any direction or order to release the petitioner on bail in connection with the cases as mentioned in Annexure P-14 forthwith on execution of personal bond with or without sureties; and (b) Issue appropriate writ in the nature of mandamus or any direction or order directing that if the petitioner is arrested in connection with any criminal case in capacity of Managing Director of Imperial Forestry Corporation Ltd., the arresting officer shall release him on bail on his executing the personal bond to the satisfaction of arresting officer;
and (c) Issue appropriate writ in the nature of Mandamus or any direction or order directing the respondents to evolve a mechanism to ensure the presence of the petitioner in all the cases as well as speedy disposal of all the cases pending against the petitioner within a fixed time frame;
(d) Issue appropriate order to treat the petitioner in custody, in cases where petitioner has not been produced, from the date of service of production warrant on the petitioner and adjust the same 3 for the purpose of bail u/s. 436A of Cr.P.C.
(e) Pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case".

3. The case of the petitioner is that, he is an under-trial prisoner lodged in District Jail, Bareilly since more than ten years i.e.
since August, 1998. He has approached this Court for enforcement of fundamental rights guaranteed under Articles 14, 19, 20 and 21 of the Constitution of India.
4. It is the case of the petitioner that he has been implicated as an accused in as many as 48 cases in six different States for commission of offences punishable under Sections 406, 409 and 420 read with Section 120B of the Indian Penal Code, 1860 (IPC) and also under Section 138 of the Negotiable Instruments Act, 1881 .
5. According to the petitioner, there is a Company known as "Imperial Forestry 4 Corporation Ltd." (hereinafter referred to as `the Company'). It was incorporated on April 19, 1990. The petitioner was the Managing Director of the said Company. In the course of business, the Company had opened Branch Offices at several places. The petitioner asserted that he resigned from the office as the Managing Director on October 30, 1994 and later on he also resigned as Director of the Company from February 15, 1998.
6. It was the case of the petitioner that when he was functioning as the Managing Director or as the Director of the Company, there was no complaint of any kind from any of the investors either for non-clearance of cheques issued to them or for non-payment of dues of the depositors by the Company. Later on, however, financial position of Investment Companies became precarious throughout the country. Investors became suspicious and they rushed to companies for refund of money and for return of their deposits which resulted in 5 Financial Companies being collapsed. The petitioner, since he was Managing Director and Director in past, was also joined as one of the accused in several cases. The petitioner has annexed along with the present writ petition, 48 cases which have been filed against him in six different States.
7. According to the writ petitioner, he was arrested in August, 1998 and till today he is in jail. The petitioner stated that in some of the cases he has not at all been produced before the Magistrate. Resultantly, he could not even apply for bail. The trials have not commenced although so many years have passed.
In some other cases, though the charges have been framed, hundreds of witnesses are likely to be examined and it would take several years in completion of the cases. In some other cases, prosecution witnesses have not turned up and concerned Courts have issued either bailable or non-bailable warrants to secure the presence of witnesses. In few cases, though the 6 petitioner was ordered to be enlarged on bail, in view of pendency of other cases, even though the petitioner is ready and willing to abide by the terms and conditions imposed by the Magistrate for release on bail, he is unable to come out of jail.
8. The petitioner further stated that he has not committed any offence. According to him, he had resigned as Managing Director as well as Director since long and, as such, no case can be filed nor any offence has been made out against him. It is only because the cases are not tried and decided that he is in jail.
9. Alternatively, it was submitted by the petitioner that even if the petitioner will be convicted in some of the cases for some offences, he would be ordered to undergo imprisonment which may be for some time.
Unfortunately, as an under-trial prisoner, he has completed more than ten years in jail. He is, therefore, constrained to approach this Court for protection of his fundamental rights 7 by an appropriate direction from this Court to the respondents so that he may be able to come out of jail as also make arrangement for his defence.
10. On May 18, 2007, notice was issued by this Court. Considering the fact that the petitioner was in jail, the Registry was directed to place the matter for final hearing.
Accordingly, the matter has been placed before us on August 18, 2008.
11. The respondents have filed affidavits.
Respondent No.1-Union of India, in its affidavit through Under Secretary of the Ministry of Home Affairs, Government of India, New Delhi stated that no allegations have been leveled against the Union of India nor specific prayer has been sought against the Union.
12. It was also stated that by the Code of Criminal Procedure (Amendment) Act , 2005, Section 436A came to be inserted which provides that an under-trial prisoner other than the one accused of an offence for which death has been 8 prescribed as one of the punishments, has been under detention for a period extending to one- half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties.
13. It was also stated by the deponent that `prisons' is a State subject covered by Entry 4 of List II of the Seventh Schedule to the Constitution. It is, therefore, the State authorities to undertake administration of prisons under the Indian Prisons Act, 1894 .
State Governments have also framed Jail Manuals and appropriate Government is required to take appropriate action in accordance with law.
14. An affidavit is also filed by the State of U.P. through Deputy S.P., E.O.W., Meerut, U.P. In the said affidavit, it was stated that the petitioner was Managing Director of Imperial Forestry Corporation Ltd.
and was actively associated with the day to day running of the business of the Company. The 9 Company had opened several Branches and Divisional Offices, inter alia, in the State of U.P. and appointed Marketing Managers along with the team of Sale Executives who used to collect money from the public by issuing Fixed Deposit Receipts (FDRs). The petitioner, in the said capacity amassed crores of rupees from public at large. When the maturity amount was not paid to the investors, several First Information Reports (FIRs) came to be lodged against the petitioner and that is how criminal cases were filed.
15. The deponent had also given list of some of the cases pending in the State of U.P.
It is in the above circumstances that the petitioner was sent to jail and is unable to come out.
16. As held by this Court, mere long period of incarceration in jail would not be per se illegal. If the petitioner has committed offences, he has to remain behind bars. Such detention in jail even as an under-trial 1 prisoner would not be violative of Article 21 of the Constitution. If the petitioner has committed non-bailable offences and in connection with those offences, he is in jail, the custody can never be said to be unlawful or contrary to law and he is not entitled to be enlarged on bail.
17. Similar affidavit is filed by C.O.
City, Dehradun, Uttarakhand stating therein that various complaints were filed against the petitioner and in pursuance thereof, the petitioner has been taken into custody.
18. We have heard learned counsel for the parties.
19. The learned counsel for the petitioner submitted that the petitioner has been in jail since more than a decade. Various cases have been instituted against him in six States. Even though the petitioner has been ordered to be enlarged on bail in some of the cases, he is unable to come out since in other cases, either the investigation is in progress or the 1 petitioner has not been produced before the Magistrate for trial. Even if the petitioner is convicted in some of the cases for some offences, he may have to remain in jail only for few years. Therefore, even if it is assumed for the sake of argument that the petitioner will be convicted, incarceration suffered by the petitioner by now might be more than the sentence which could be imposed on him. It was, therefore, submitted that an appropriate direction may be issued so that the petitioner may be released on bail.
20. The petitioner has also invited our attention to Section 436A of the Code which provides maximum period for which an under- trial prisoner may be detained. It was, therefore, submitted by the learned counsel for the petitioner that during the pendency and final disposal of criminal cases, the petitioner may be ordered to be enlarged on bail on his executing personal bond.
21. The learned counsel for the respondent, on the other hand, submitted that systematic fraud has been committed by the petitioner and he has cheated several innocent investors at various places. Crores of rupees had been collected by him in the capacity of Managing Director of the Company. It was only when he refused to refund the amount that criminal cases have been filed against him for which the petitioner alone is responsible.
Since the offences said to have been committed by the petitioner are non-bailable, the police authorities had arrested him and he is taken in custody in accordance with law. No grievance, therefore, can be made by the petitioner against lawful action taken by the investigating authorities. If it is so, the petitioner cannot invoke Article 21 of the Constitution. Even if the petitioner is ordered to be enlarged on bail in some of the cases, other cases pending against him cannot be ignored.
22. It was further submitted that the petitioner forgets that he can be convicted in several cases for the offences with which he is charged. All those cases are different, distinct and independent. In that case, obviously, he may have to remain in jail for several years.
23. Regarding applicability of Section 436A of the Code, it was stated that firstly, the said provision came to be inserted by an Amendment Act of 2005 which came in force in June, 2006 and as such, it has no application to the present case. But, even if the said provision applies to the case of the petitioner, in view of several cases at various places committed by the petitioner, he would not get the benefit of the aforesaid provision.
It was, therefore, submitted that the petition deserves to be dismissed.
24. Having heard learned counsel for the parties and having gone through the writ petition along with annexures as also counter- 1 affidavits, we are of the view that on the facts and in the circumstances of the case, the petitioner deserves some relief from this Court. True it is that as per the allegation of the prosecution, various offences have been committed by the petitioner and those cases are pending at difference places. But other equally important fact also cannot be overlooked that he is in jail since more than ten years. Prima facie, the submission of the learned counsel for the petitioner is well-founded that only if the petitioner comes out of jail that he may be able to make arrangement for repayment of amount and also to defend cases registered against him.
25. The learned counsel, in this connection, invited our attention to a two Judge Bench decision of this Court in V.K.
Sharma v. Union of India & Ors., (2000) 9 SCC 449. In V.K. Sharma, the petitioner was an accused in a large number of cases punishable under Sections 406, 409, 420 read with Section 1 120B, IPC in several States. There also, in spite of securing bail orders in his favour in some of the cases, the petitioner had to remain in jail in view of production warrants issued by other Courts. The petitioner, in that case too, approached this Court by filing a petition under Article 32 of the Constitution alleging violation of his fundamental right guaranteed under Article 21 of the Constitution, seeking an appropriate writ, direction or order that he should be released on bail and all the cases pending in different States against the petitioner be consolidated in one and the same Court through investigation by Central Bureau of Investigation (CBI) in all cases. This Court considered the rival contentions of the parties. It did not think proper to grant all reliefs sought by the petitioner, but granted the following reliefs to him;
1. If the petitioner is arrested in connection with any criminal case in his capacity as Managing Director/ Director of JVG group of companies the 1 arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer.
2. Such relief shall be made after getting an assurance from him that he will be present in the court concerned on the days when his case is posted.
However, we make it clear that it is open to the petitioner to apply to the court concerned for exempting him from personal appearance on condition that a counsel on his behalf would be present on such posting dates and he would not dispute his identity as the particular accused in that case, and further that he would make himself available on any date when his presence is imperatively needed in that court.
3. We permit the petitioner to move the appropriate high courts for bringing all the cases pending in different courts within the territorial jurisdiction of that high court to one single court or more than one court (depending upon the number of cases or the width of the area of the State is concerned).
4. This order will come into effect only if the petitioner would surrender his passport in this Court. Shri Shanti Bhushan, learned senior counsel expressed a doubt that petitioner would have already surrendered his passport before another court pursuant to the order passed. In that case he 1 can satisfy the Registrar General of this Court by an affidavit of the situation and the Registrar General can intimate the jail authorities concerned of that position.
5. We make it clear that it is open to the investigating agency in any case to move for cancellation of bail if any such investigating agency finds that petitioner is misusing the liberty granted by this order.
(emphasis supplied)
26. This Court thus in V.K. Sharma granted certain relief keeping in view the fact that the accused was in jail since about sixteen months. The Court further held that if the petitioner would be arrested in any criminal case in his capacity as Managing Director/Director of the Company, the Arresting Officer would release him on his executing bond to the satisfaction of the Arresting Officer.
27. The learned counsel for the respondents, however, referred to a decision of a three Judge Bench of this Court in State of Punjab & Anr. V. Rajesh Syal, (2002) 8 SCC 158.
1 In Rajesh Syal, the respondent was a former Director of a Company. The Company collected huge amount from general public for purchasing land and promised that the amount would be returned after expiry of maturity period fixed through cheques. Monies were not repaid and complaints were made to the State. The Vigilance Department of the State lodged various FIRs against the respondent.
28. According to the prosecution case, crores of rupees had been collected by the Company from the general public. Proceedings were initiated by the accused by filing an application under Section 482 of the Code in the High Court for quashing of criminal proceedings. A prayer was also made that all cases be tried by one Court. Support was sought from V.K. Sharma. Though in the decision of V.K. Sharma, this Court had stated that the order could not be treated as a `precedent', the High Court, by treating the order as a `precedent' allowed the petition of the accused 1 and transferred different cases pending in the State of Punjab against the accused to a Court of Special Judge. The said action was challenged by the State in this Court.
29. Considering the relevant provisions of the Code, particularly relating to framing of charge and conduct of trial, this Court held that in the light of various provisions and the scheme of the Code, no direction could be given by a Court to consolidate all cases against the accused and to be tried by one Court. Such a direction would be contrary to express provisions of the Code. Even in exercise of inherent powers under Section 482, the High Court could not direct an authority to act contrary to law. The Court also observed that this Court has ample jurisdiction to pass orders under Article 142 of the Constitution for doing complete justice between the parties in any case or matter but it is doubtful whether in exercise of the said power, such an order could be passed. The Court held that 2 direction as to consolidation of cases pending in different Courts for different offences to be tried in a single Court issued in V.K.
Sharma was not in consonance with law. V.K.
Sharma was, therefore, expressly overruled.
30. Narinderjit Singh Sahni & Anr. v.
Union of India & Ors., (2002) 2 SCC 210 was also referred to. In that case, this Court held that if an accused commits an offence, he has to remain in jail and he cannot make complaint to this Court under Article 32 of the Constitution on the ground of so called infraction of Article 21.
31. So far as Section 436A is concerned, it may be stated that by the Code of Criminal Procedure (Amendment) Act , 2005, the said section came to be inserted, which reads as under;
"436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been 2 specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
32. In the statement of objects and reasons it was stated;
There had been instances, where under-trial prisoners were detained in jail for periods beyond the maximum 2 period of imprisonment provided for the alleged offence. As remedial measure section 436A has been inserted to provide that where an under-trial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishments, has been under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It has also been provided that in no case will an under-trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.
33. The learned counsel for the respondents are, prima facie, right in submitting that no retrospective effect has been given to the said provision and as such Section 436A does not directly apply to the facts of the case.
34. In our opinion, however, the hard reality equally important also cannot be lost sight of the fact that the petitioner is in jail since more than ten years. It would, therefore, be appropriate if limited relief is 2 granted to the petitioner. So far as consolidation of cases and trial of all the cases in one Court is concerned, as observed hereinabove, such relief cannot be granted.
V.K. Sharma, wherein such relief was granted, has been expressly overruled by Rajesh Syal. We are, therefore, of the view that the petitioner is not entitled to such relief.
35. On overall facts and circumstances, in our opinion, the ends of justice would be served if we partly allow the petition and issue the following directions:
1. If the petitioner will apply for bail, an appropriate Court will release him on bail on his executing a bond to the satisfaction of such Court.
2. If the petitioner is not arrested but is likely/required to be arrested, the Arresting Officer shall release him on 2 bail on his executing a bond to the satisfaction of the Arresting Officer.
3. The above relief will be granted to the petitioner only in those cases where he is arrested in his capacity as Managing Director/Director of Imperial Forestry Corporation Ltd.
4. Such relief will be allowed to the petitioner on his giving an assurance/ undertaking that he will remain present in the court concerned as and when his case is posted for hearing or his presence is required.
5. It is open to the petitioner to apply to the Court concerned for exempting him from personal appearance. The Court will pass an appropriate order on such application on such terms and conditions as the Court deems fit.
6. If the petitioner is having a passport with him, he will surrender his passport to police authorities. The police authorities will retain the same till the final disposal of all the cases.
7. It is open to the investigating agency in any case to move a competent Court for cancellation of bail/modification of conditions, if any such investigating agency finds that petitioner is misusing the liberty granted by this Court.
8. The above directions have been issued by us in special circumstances keeping in view the fact that the petitioner is in jail since more than ten years.
36. We may make it clear that the above order is passed without prejudice to the rights and contentions of the parties.
37. The writ petition is accordingly partly allowed to the extent indicated above.

Sunday, November 28, 2010

HC allows to enroll a candidate with upper limb disability to PG course

Ahmedabad: In an important decision, the Gujarat high court has directed the Saurashtra university, the PG medical admission committee and the Medical Council of India to enroll a candidate with upper limb disability to PG course. The high court has also held that MCI’s decision to change the criteria of disability for admission on reserved seats was ultra vires and does not adhere to the provisions of Disabilities Act.

As per MCI’s amended guidelines of 2009 for reservation for students with disability, locomotory disabilities of lower limbs between 50-70 per cent is the criteria for admission in MBBS and PG medical courses. However, the upper limb should be functional and normal because it is required to elicit any sign during clinical examination, and finer movements are desired for conduct of surgical procedure. The feeling and sensation are important for clinical diagnosis and treatment.
Deval Mehta from Surat suffered head injury in his childhood, which was diagnosed as right sided hemiparesis at level C4-C5 of the vertebrae. The effect was muscular weakness of both the right upper limb and lower limb resulting in decreased grip and wasting of muscles on the right side. The petitioner on diagnosis has been declared as physically disabled having 50 per cent permanent physical impairment.
Mehta got admission in MBBS in physically handicapped category in a Surat medical college and got the degree last year. He applied for PG course in Saurashtra University and cleared the test. However, the PG medical admission committee did not consider him eligible for admission against reserved seats in view of MCI guidelines. Mehta approached the Commissioner for Disabled Persons, who requested the university to consider the case sympathetically. But after consulting MCI, the university declined the request.
Mehta then approached the high court and his case was heard at length by a bench headed by the chief justice. Mehta also questioned MCI’s decision to fix criteria of 50-70 per cent disability, though the Centre Act prescribes 40-60 per cent disability for reservation.

‘Harassed husbands' lose their case

The Gujarat High Court has disposed of a petition, with costs of Rs. 1 lakh, filed by an organisation that sought a new law for protection of “harassed husbands” against atrocities by wives and an amendment to the existing law.

A Division Bench of Chief Justice S.J. Mukhopadhyaya and Justice K.M. Thaker fined the Akhil Bhartiya Patni Atyachar Virodhi Sangh (the All India Wives Cruelty Opposition Union) for filing a frivolous petition. It said the petition was an attempt to seek media attention and publicity. The court warned union president Dashrath Devda that if the petitioners continued to press the case, the costs would be doubled and the Revenue department directed to recover them — amounting to seizure of their assets.

The petition “filed in the public interest” claimed that there was an urgent need for a protective law for husbands against cruelty. The petitioners sought amendments to the Indian Penal Code and the Criminal Procedure code to incorporate protection to the “harassed husbands.”

In 2005, the High Court initiated contempt proceedings against Mr. Devda in another case for staging demonstrations and shouting slogans against the family court, the High Court and the Supreme Court. Family court judge K. M. Vin filed the contempt petition, on which the High Court awarded him one-month imprisonment and a fine of Rs 5,000 for contempt after he refused to accept its directive to tender an unconditional apology.

Plea to recall ruling where woman was described as ‘keep'

Contending that the use of the expression ‘keep' in a recent judgment to describe a woman was highly derogatory and a discrimination against women on grounds of marital status, Mahila Dakshta Samiti, a women's organisation has moved the Supreme Court for its recall.

On October 21, a Bench of Justice Markandey Katju and Justice Gyan Sudha Misra in a judgment had said, “not all live-in relationship will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act of 2005. If a man has a “keep,” whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a “relationship in the nature of marriage. Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship.”

Offended by the expressions used, the very next day, Additional Solicitor-General Indira Jaising voiced her protest before Justice Katju, who wrote the judgment, and indicated that women's organisations would be filing review petitions for recall of the ruling.

In its review petition, Mahila Dakshta Samiti said, “the expression such as ‘keep' which specifically refer to woman is based on social and cultural prejudices which need to be eliminated in order to prevent discrimination against woman. The expression would perpetuate social and cultural prejudices and is based on the idea of stereotyping woman.

It submitted that “Article 2(f) of the Convention for Elimination of Discrimination against Women calls for change in the traditional roles of men and women in bringing about gender equity. Article 2(F) provides that States should take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices, which constitute discrimination against women.”

It said, “in law only chattel can be “kept” and not human beings. Slaves could be “kept” as they are considered chattels in law and owned by the master. Hence the word ‘keep' is inappropriate in a constitutional regime such as ours which guarantees fundamental rights and the dignity of woman. The use of the expression ‘keep' violates Article 14 and 15 of the Constitution of India as it is not gender neutral and applies only to women. Further the expression ‘servants' is derogatory of the dignity of labour and they are now known as domestic help.”

The petitioner said, “while deciding the nature of the relationship, which meets the requirement of a relationship in the nature of marriage, the Supreme Court has also laid down certain relationship which do not qualify for being described as relationship in the nature of marriage.

It said the court had recorded its findings based on Wikipedia, which is an online encyclopaedia and information can be entered therein by any person and as such it may not be authentic and cannot be used for the purpose of determining the content of relationship. It was of the view that the Supreme Court was not called upon to give such observations in the facts and circumstances of the case as emerging from the judgment. The petitioner while seeking to recall the order in so far as the use of these expressions was concerned sought an oral hearing.

Saturday, November 27, 2010

Court orders FIRs to be filed against Arundhati, Geelani

A Delhi court on Saturday ordered registration of FIR against Hurriyat hawk Syed Ali Shah Geelani, writer Arundhati Roy and five others for allegedly making anti-India speeches.

"The Delhi police is hereby directed to lodge an FIR under relevant provisions of the Indian Penal Code and file a report in this regard on January 6, 2011 the next date of hearing," Metropolitan Magistrate Navita Kumari Bagha said.

The court rejected the status report submitted by the Delhi Police which said no offence relating to sedition and other charges were made out against Geelani and others.
It said there were prime facie cogent evidence against the accused and asked the police to further investigate the allegations and file a compliance report.
The court had earlier pulled up the police for failing to submit proper status report on the complaint filed with them on October 28 by Sushil Pandit seeking registration of FIR against Roy and Geelani.

Take action against incorrigibles in Allahabad High Court: Supreme Court

The Supreme Court on Friday asked the Chief Justice of the Allahabad High Court to act against a judge who had passed orders on extraneous considerations, and against some other judges facing complaints.

A Bench of Justices Markandey Katju and Gyan Sudha Misra said: “We do not mean to say that all lawyers who have close relations as judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some judges of the High Court. The High Court really needs some house-cleaning (both the Allahabad and Lucknow Benches), and we request the Honourable Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles.”

In the instant case, on a writ petition by Raja Khan, a single judge directed the respondents (the Uttar Pradesh Sunni Central Waqf Board; the District Magistrate, Bahraich; and the Committee of Management, Waqf No. 19, Dargah Sharif, Bahraich) to allot Waqf land for running a circus, ‘jhoola' and merry-go-round, and possession of the allocated land was ordered to be handed over within three days. A Division Bench set aside the order.

Dismissing the appeal against the Division Bench order, the Supreme Court said: “We are of the opinion that the two ex parte interim orders of the single judge were clearly passed on extraneous considerations. The property in question is in Bahraich district, within the territorial jurisdiction of the Lucknow Bench. Hence, the writ petition could not have been validly filed or entertained in the Allahabad Bench. The writ petition was not maintainable because ordinarily no writ petition lies against a private body.”

The Supreme Court directed that a copy of this order be sent to the Registrars-General/Registrars of all High Courts for being placed before the Chief Justices of the High Courts.

Friday, November 26, 2010

SIVAKUMAR v. NATARAJAN [2009] INSC 1095 (15 May 2009)


Sivakumar ...Appellant
Natarajan ...Respondent


1. Leave granted.
2. This appeal is directed against a judgment and order dated 03.02.2007 passed by the Madurai Bench of the Madras High Court in Crl. Revision No.
849 of 2005 whereby and whereunder the Criminal Revision application filed by the appellant herein was dismissed affirming the judgment of the learned Principal Session Judge, Trichrapalli dated 08.11.2005 passed in Crl.
A No. 87/2005, preferred against the judgment dated 03.05.2005 in CC No.
69/2004 by the learned Judicial Magistrate III, Tiruchirapalli.

3. On or about 14.08.2003, appellant borrowed a sum of Rs. 1,00,000/- for the purpose of his business as loan from the complainant - respondent.
The said amount was to be repaid within a period of three months. On or about 20.11.2003 the appellant handed over a cheque bearing No. 0652756 dated 27.11.2003 for a sum of Rs. 1,00,000/- in favour of the respondent.
The said cheque was presented by the complainant for collection to his banker namely UCO Bank, Trichy Main Branch on 27.11.2003. It was dishonoured with the remarks "insufficient funds" on 2.12.2003. Information thereabout was received by the respondent on 3.12.2003.
4. On 02.01.2004, the respondent issued a legal notice to the appellant calling upon him to pay the amount in question within 15 days from the date of the receipt of the notice. Admittedly, the appellant neither sent a reply to the said notice nor paid the amount due.
Respondent thereafter filed a complaint petition against the appellant under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act ") before the Judicial Magistrate No. III, Tiruchirapalli.
5. The learned Judicial Magistrate III convicted the appellant under Section 138 of the Act and sentenced him to undergo one year's simple imprisonment and a fine of Rs. 5000/- and in default thereof to undergo further six months of simple imprisonment. He was also directed to pay a sum of Rs. 1,00,000/- as compensation to the respondent under section 357(1) of the Code of Criminal Procedure.
6. Aggrieved thereby and dissatisfied therewith, appellant preferred an appeal before the Principal Session Judge, Tirchirapalli, which was dismissed.
7. Appellant filed a revision application thereagainst before the High Court, which by reason of the impugned judgment has been dismissed.
Appellant is, thus, before us.
8. Before proceeding further, we may place on record that subsequent to the passing of the impugned judgment, a settlement has been entered into by and between the appellant and the respondent wherein it has been stated:
4 "At this juncture, with the consensus of both the parties, on the assurance of the 2nd party, the 2nd party shall receive a sum of Rs. 30,000/- from the 1st party and shall not take any action against the judgment rendered by the court and there shall be no interest over the issue before or after the settlement and as such we both have signed in the presence of the witnesses. 2nd party has also consented to issue a receipt for having received the said amount to the 1st party."
9. The core question which arises for consideration is as to whether the notice dated 2.01.2004 was issued within the stipulated period of thirty days from the date of receipt of intimation of the dishonour of cheque.
Section 138 of the Act reads as under:
" 138 . Dishonour of cheque for insufficiency, etc.
of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act , be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
5 Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section , `debt or other liability' means a legally enforceable debt or other liability."
10. By reason of the provisions of the Act , a legal presumption in regard to commission of a crime has been raised. The proviso appended thereto, however, states that nothing contained in the main provision would apply unless conditions specified in clauses (a), (b) and (c) thereof are complied with. Clauses (a), (b) and (c) of the proviso, therefore, lay down conditions precedent for applicability of the main provision. Section 138 of the Act being penal in nature, indisputably, warrants strict construction.
6 In M/s. Harman Electronics (P) Ltd. & Anr. v. M/s. National Panasonic India Ltd. [2008 (16) SCALE 317], this Court held:
"8. The proviso appended thereto imposes certain conditions before a complaint petition can be entertained.
9. Reliance has been placed by both the learned Additional Sessions Judge as also the High Court on a decision of this Court in K. Bhaskaran v.
Sankaran Vaidhyan Balan and Anr.. This Court opined that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts, namely, (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was opined that if five different acts were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint petition at any of those places. As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated:
`18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from 7 the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address.' *** *** ***
14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act , the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together.
Issuance of notice would not by itself give rise to a 8 cause of action but communication of the notice would."
Keeping in view the aforementioned legal principle, interpretation of clause (b) of the proviso appended to Section 138 of the Act has to be considered.
11. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to Section 138 of the Act employed the term "within a period". Whereas clause (a) refers to presentation of the cheque to the bank within a period of six months from the date on which it is drawn, clause (b) provides for issuance of notice "to the drawer of the cheque within thirty days of the receipt of information". The words "within thirty days of the receipt of information" are significant. Indisputably, intimation was received by the respondent from the bank on 3.12.2003.
The Parliament advisedly did not use the words `from the date of receipt of information' in Section 138 of the Act . It is also of some significance to notice that in terms of Section 9 of the General Clauses Act , 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to".
9 The departure made from the provisions of Section 9 of the General Clauses Act by the Parliament, therefore, deserves serious consideration.
12. Indisputably, the notice was issued on the 31st day and not within a period of thirty days from the date of receipt of intimation from the bank. If Section 9 of the General Clauses Act is not applicable, clause (b) of the proviso appended to Section 138 of the Act was required to be complied with by the respondent for the purpose of maintaining a complaint petition against the appellant.
In Munoth Investments Ltd. v. Puttukola Properties Ltd. and Another [(2001) 6 SCC 588] construing clause (a) of the proviso appended to Section 138 of the Act , this Court held:
"5. In our view, the High Court committed material irregularity in not referring to the aforesaid evidence which was recorded by the Metropolitan Magistrate. Section 138(b) of the Act inter alia provides that the payee has to make demand for the payment of money by giving a notice "to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid".
So fifteen days are to be counted from the receipt of information regarding the return of the cheque as unpaid. In the present case, it is the say of the complainant that the cheque was presented for 1 encashment on 12th; it was returned to the Bank on 13th and information was given to the complainant only on 17th, as 14th, 15th and 16th were Pongal holidays. The learned counsel fairly pointed out that in the complaint it has been stated that the complainant had received intimation with regard to the return of the said cheque from his banker on 13-1-1994. However, he submitted that this is an apparent mistake and for explaining that mistake the appellant has led the evidence before the trial court. Undisputedly, he pointed out that in the State of Tamil Nadu, 14-1-1994 to 16-1-1994 there were Pongal holidays and, therefore, the appellant came to learn about the dishonour of his cheque on 17-1-1994."
We, with respect, agree with the approach of the learned Judges.
13. Our attention has furthermore been drawn to a decision of the Kerala High Court in K.V. Muhammed Kunhi v. P. Janardhanan [1998 Crl. L.J.
4330], wherein construing proviso (a) appended to Section 138 of the Act , a learned Single Judge held:
"...A comparative study of both the Sections in the Act and the General Clauses Act significantly indicate that the period of limitation has to be reckoned from the date on which the cheque or instrument was drawn. The words `from' and `to' employed in Section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with reference to the date of commencement of period of limitation in any Act or special enactment, the words `from' and 1 `to' employed in Section 9 of the General Clauses Act can be pressed into service.."
[See also K.C. Nanu v. N. Vijayan and Anr. 2008 (1) KLJ 327] We are in agreement with the aforementioned view.
14. Mr. B. Balaji, learned counsel appearing on behalf of the respondent, however, would contend that the appellant having entered into a settlement in terms whereof he had deposited a sum of Rs. 30,000/- and an assurance having been given that no action would be taken against the judgment rendered by the High Court, this Court should not exercise its discretionary jurisdiction under Section 136 of the Constitution of India to interfere with the impugned judgment. We fail to persuade ourselves to agree with the aforementioned submission.
15. Appellant has a fundamental right of liberty in terms of Article 21 of the Constitution of India. Liberty of the appellant, therefore, could not have been taken away except in accordance with the procedure established by law.
Principles of `Estoppel' or `Waiver' would not, therefore, apply in the instant case.
1 In any event, the respondent himself has backed out from the aforementioned settlement. He, therefore, cannot be permitted to take a different stand.
16. Having, however, regard to the facts and circumstances of the case, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that as the civil liability of the appellant stands admitted, the said sum received by the respondent need not be refunded.
17. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside with the aforementioned directions. The appeal is allowed.
[S.B. Sinha] ................................J.
[Asok Kumar Ganguly] New Delhi;